Pentagon lawyers are seldom appreciated. And the good ones are rarely on stage or near the spotlight. Certainly that was the case on December 18, 2010, when the Senate and House, in dramatic fashion during a lame duck session, passed legislation that would end the Don't Ask, Don't Tell (DADT) ban on gay soldiers in the military. There were kudos and cheering for President Obama, Senators Reid and Levin, Lieberman and Collins. There were toasts for then House Speaker Nancy Pelosi, for Congressmen Patrick Murphy, Steny Hoyer and others in that body, and smart salutes for then Defense Secretary Robert Gates and Mike Mullen, Chairman of the Joint Chiefs of Staff. All well deserved.
But Jeh Johnson, the Pentagon's top civilian lawyer, who was appointed by President Obama and who served as Secretary Gates' General Counsel, was not on Capitol Hill that cold December day. He was across the Potomac, quietly following the Senate vote in the Pentagon with his cadre of lawyers. Johnson's preparations and hard work had been done, his vote counting and Congressional testimony and numerous hearings wrapped up. The exhaustive 10-month study he had conducted with Army General Carter Ham had been completed and delivered to Congress. Notwithstanding some pending legal challenges in various courts, the president, the Defense Secretary and the JCS Chairman would soon certify to Congress that repeal would have no adverse impact. Finally the law banning gay people from serving their country would be a thing of the past.
Before that could happen, though, it took a trusted broker like Jeh Johnson to balance all the contending factors in the Pentagon and Congress and keep the key players talking. At critical times in 2009 and 2010, as Johnson shuffled between lawyers and political operatives in the White House and staffers on Capitol Hill and back to the Pentagon, reviewing legislative language and hearing concerns at the highest levels, the outcome sometimes looked bleak. But the key operatives trusted Jeh Johnson and knew his word was good, and they kept at it. An anxious White House understood they were putting the president's commitment to repeal largely in Johnson's hands, and Gates' and Mullen's as well. When Johnson explained that the courts were trending towards equality and what that might mean for the Pentagon and its policy on gay people in the ranks, Secretary Gates clearly understood.
Gates tapped Johnson to co-chair the Pentagon Working Group to engage the force on the question at hand; Mullen quickly picked Carter Ham for the other chair. As Gates testified before the Senate Armed Services Committee, "We have our marching orders from the president." Not exactly a ringing endorsement, but Gates took solace in knowing that Johnson would ensure the results were fair, that the troops would have a real voice in the decision
Unlike Admiral Mullen, who clearly embraced the process, Gates wasn't that eager to engage in repeal of DADT. "Let's push that one down the road a little bit," he told Fox News. But the last thing he wanted was the courts to determine the outcome. He didn't want the Judiciary giving orders to his Pentagon and his troops. Gates would be a good solider, largely because he had faith in Jeh Johnson as an honest broker. Now he agreed with Johnson and the White House on a process that would give the Pentagon a huge voice in the final outcome. (Gates would quietly depart the Pentagon and leave the final repeal certification up to Secretary Panetta.)
In early 2009, when Jeh Johnson's appointment was announced, I didn't know where he would stand on repeal of DADT. But once I learned that Johnson's hero was a lawyer named Jack Greenberg, I was optimistic. In 1949 Jack Greenberg was the only white lawyer named to the NAACP Legal Defense and Educational Fund, and in 1961 Greenberg succeeded Thurgood Marshall as Director General at the NAACP. Greenberg, a law professor at Columbia University who is still practicing, has devoted his life and work to justice and fairness. Greenberg argued Brown v. Board of Education with Thurgood Marshall. If Jeh Johnson's hero was Jack Greenberg, that was good enough for me.
Despite all the problems the Pentagon faced -- drones, detainees, military tribunals, Guantanamo Bay and procurement, just to name a few -- some believe that Jeh Johnson and Admiral Mullen will be remembered most for the steady-as-you-go way they led our armed forces in ending Don't Ask, Don't Tell. President Obama, our armed forces, and our country were well served by Jeh Johnson. Jack Greenberg must be very proud of his student.